In the legal proceedings that surrounded the question of the guardianship
of Karl van Beethoven, a crucial role was played by paragraph 191 of the Allgemeines Bürgerliches Gesetzbuch für die deutschen Erbländer der
österreichischen Monarchie (General Civil Code for the German Hereditary
Lands of the Austrian Monarchy; hereafter cited as ABGB). Both when Beethoven was first appointed guardian in January 1816 and again when he
was reinstated in April 1820, this paragraph, in one of its provisions, gave
an incontestable legal ground for denying Johanna van Beethoven the right
to be her own son's guardian: she had been convicted of a crime. According
to paragraph 191, persons unfit to be guardians included those 'who have
been found guilty of a felony',1 and that invalidated the provision made by
the boy's father, Kaspar Karl van Beethoven, in the codicil to his will of 14 November 1815.2 Consequently, according to Paragraph 198 of the ABGB,
since the minor's grandparents were no longer living, the charge fell to the

Para. 191 of the ABGB lists several things which might disqualify a person from acting as a
guardian. In addition to the one cited in the text, they include being under age, suffering from
physical or mental infirmity, and lacking the ability to provide a 'decent education' ('anständige
Erziehung', meaning both 'upbringing' in general and 'education' in the scholastic sense) or the
'efficient administration of the inheritance' of the orphan. The age of the prospective guardian, or
whether he or she had a criminal record, would be a matter of fact, but in many cases the other causes
of disqualification would be hard to prove.

The original clause in Kaspar Karl van Beethoven's will of 14 Nov. 1815 read 'Fifthly, along with
my wife I appoint my brother Ludwig van Beethoven co-guardian' ( Wien, Stadt- und Landesarchiv
(hereafter WSLA), Hauptarchiv-Akten, Persönlichkeiten B 14, fos. 3-4). After deletions this became
'Fifthly, I appoint my brother Ludwig van Beethoven guardian'. The codicil of the same date (ibid.,
fos. 5-6) shows him reverting to his earlier wish 'that she [his wife] shall be my son's guardian as well
as my brother'. Strictly speaking, this provision was against the law, which did not allow for equal,
dual guardianship. When a woman was appointed guardian, the law required there to be a male co-
guardian, who was only called on to act in circumstances where legal reasons prevented a woman
from representing her own and her ward's interests.

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